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2017 DIGILAW 454 (RAJ)

Prem Devi W/o Ganesha Ram v. Bhanwari Devi D/o Shri Motiram

2017-02-08

PANKAJ BHANDARI

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JUDGMENT : Pankaj Bhandari, J. 1. Petitioner has preferred this writ petition aggrieved by order dated 03.03.2012 vide which application filed by the plaintiff-respondent under Section 151 CPC was allowed. 2. It is contended by counsel for the defendant-petitioner that the amendment could not be allowed once the matter is fixed for pronouncement of judgment and such an application is not maintainable. It is also contended that the error is not a typographical error and the provision of Section 151 CPC cannot be invoked in such matters where the plaintiff has not been diligent. 3. Counsel for the petitioner has placed reliance on 2015(1) DNJ (Raj.) 222, Life Insurance Corporation of India, Jodhpur v. State of Rajasthan & ors., wherein the plaintiff sought to change the subject matter of the dispute. The Hon'ble High Court observed that such amendment cannot be allowed. 4. Counsel for the petitioner has also placed reliance on 2014(4) DNN (Raj.) 1666 Ramesh Chand Sharma v. Additional District Judge No. 18, Jaipur Metropolitan, Jaipur & Anr., was a case where the typographical error was discovered after the defendant had moved three applications for amendment of the written statement and Court held that the application was filed with ulterior motive and the order rejecting the application was upheld. 5. Counsel for the petitioner has also been placed reliance on 2012 DNJ (SC) 146 J. Samuel & Ors. v. Gattu Mahesh & Ors., Para 15 of which reads as under:- In the given facts, there is a clear lack of 'due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code. 6. Counsel for the petitioner has also been placed reliance on 2014(3) DNJ (Raj.) 852 Kanhaiya Lal v. Om Prakash, wherein the matter was fixed for pronouncement of judgment. 6. Counsel for the petitioner has also been placed reliance on 2014(3) DNJ (Raj.) 852 Kanhaiya Lal v. Om Prakash, wherein the matter was fixed for pronouncement of judgment. The Court observed that at the stage of reservation of judgment for pronouncement application could not have been filed. 7. Counsel for the petitioner has also placed reliance on AIR 1964 Supreme Court 993, Arjun Singh v. Mohindra Kumar & Ors., wherein the matter was fixed for pronouncement of judgment, the Court observed that an application under Order 9, Rule 7 could not be moved at this stage. 8. Counsel for the plaintiff-respondent has opposed the writ petition. His contention is that Section 151 CPC deals with the inherent powers of the court and no rider can be imposed upon the inherent powers of the court, if the order is to be made for ends of justice. It is argued by counsel for the respondent that in the plaint itself, a prayer was made for cancellation of the sale deeds dated 17.10.2008 and 27.11.2009. In the sale deed itself, in the description of the property 250/1, 256/1 and 260/1 was mentioned, therefore, the court was justified in allowing the amendment as no injustice has been caused to the petitioner by the said amendment. 9. I have considered the rival contentions and have perused the judgment cited by counsel for the petitioner. In the facts of this case, it is pertinent to note that in the plaint itself, the plaintiff in his relief clause has sought a relief for cancellation of the sale deeds dated 17.10.2008 and 27.11.2009. These sale deeds were produced with the plaint and were also exhibited. In the sale deeds, in the description of property 250/1, 256/1 and 260/1 is mentioned, therefore, the suit was for cancellation of the sale deed pertaining to Khasra No. 250/1, 256/1 and 260/1 and merely because the plaintiff in his plaint has mentioned Khasra No. 250, 256 and 260. It cannot be said that such error is not a typographical error. 10. On perusal of the plaint as a whole and the intention of the plaintiff, it is evident that the plaintiff wanted to set aside the sale deeds registered on 17.10.2008 and 27.11.2009 which pertained to 250/1, 256/1 and 260/1. 11. It cannot be said that such error is not a typographical error. 10. On perusal of the plaint as a whole and the intention of the plaintiff, it is evident that the plaintiff wanted to set aside the sale deeds registered on 17.10.2008 and 27.11.2009 which pertained to 250/1, 256/1 and 260/1. 11. Section 151 CPC is inherent powers of the court and no rider can be imposed upon the same and court is required to exercise the powers in order to secure the ends of justice. Merely mentioning of 250, 256, 260 in the plaint and now substituting it by 250/1, 256/1 and 260/1, would not change the nature of the suit as the relief is for cancellation of these sale deeds. No prejudice would be caused to the petitioner by the said amendment as he is aware that the suit is for cancellation of his sale deeds. 12. The court below has therefore, not committed any illegality in permitting the amendment in the facts of this particular case. The judgment cited by counsel for the petitioner on facts, do not have applicability to the facts of this present case. 13. Consequently, the writ petition is dismissed. The stay petition also stands disposed.